Matter of Peugnet
| Decision Date | 29 January 1991 |
| Docket Number | A-27538066.,Interim Decision Number 3142 |
| Parties | MATTER OF PEUGNET In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated January 21, 1988, an immigration judge found the respondent deportable as charged under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1988), as an alien who had entered the United States without inspection, denied her applications for relief from deportation, and ordered her deported from the United States to Nicaragua. The decision was rendered following a hearing held in absentia due to the respondent's failure to appear. The respondent has appealed from that decision. The appeal will be sustained and the record will be remanded to the immigration judge.
The respondent, a native and citizen of Nicaragua, entered the United States without inspection on July 11, 1986. An Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S) charging the respondent with deportability was issued on July 12, 1986, and was personally served on the respondent that same day. After the respondent conceded her deportability and submitted an application for relief from deportation, an immigration judge, on May 5, 1987, granted her motion for a change of venue from Harlingen, Texas, to Miami, Florida. Thereafter, the respondent failed to appear for a hearing scheduled for September 9, 1987, and the immigration judge administratively closed the case.1 On October 15, 1987, the Immigration and Naturalization Service requested that the respondent's case be calendared for a continued hearing. That same day, the Service also issued a new Order to Show Cause, charging the respondent with the same ground of deportability and listing the exact same factual allegations listed in the prior Order to Show Cause. The new Order to Show Cause was sent to the respondent by regular mail. On October 19, 1987, the immigration judge granted the Service's motion and scheduled the respondent's next hearing for December 3, 1987. The hearing was subsequently rescheduled, and the respondent was sent notice, by electronic mail to her last known address, of a hearing scheduled for January 14, 1988. As noted above, the respondent failed to appear for the scheduled hearing, which proceeded in absentia.
On appeal, the respondent, through counsel, asserts that she never received either the new Order to Show Cause or the notice of the January 14, 1988, hearing.2
Section 242(b) of the Act, 8 U.S.C. § 1252(b) (1988), provides in pertinent part as follows:
If any alien has been given a reasonable opportunity to be present at a proceeding under this section, and without reasonable cause fails or refuses to attend or remain in atteñdance at such proceeding, the special inquiry officer may proceed to a determination in like manner as if the alien were present.
A hearing in absentia is appropriate where the alien had notice of his hearing, had an opportunity to attend, and showed no reasonable cause for his failure to appear. Maldonado-Perez v. INS, 865 F.2d 328 (D.C. Cir. 1989); Matter of Patel, 19 I&N Dec. 260 (BIA 1985), aff'd, 803 F.2d 804 (5th Cir. 1986); Matter of Marallag, 13 I&N Dec. 775 (BIA 1971); see also Matter of Haim, 19 I&N Dec. 641 (BIA 1988). Additionally, applications for benefits under the Act are properly denied as abandoned or for lack of prosecution when the alien fails to attend the hearing or otherwise pursue them. Reyes-Arias v. INS, 866 F.2d 500 (D.C. Cir. 1989) (asylum); Matter of Balibundi, 19 I&N Dec. 606 (BIA 1988) (asylum); Matter of Nafi, 19 I&N Dec. 430 (BIA 1987) (exclusion); Matter of Jaliawala, 14 I&N Dec. 664 (BIA 1974) (adjustment of status); Matter of Pearson, 13 I&N Dec. 152 (BIA 1969) (visa petition).
Our review of the record shows that notice of the January 14, 1988, hearing was mailed to the respondent's correct address. However, the immigration judge erred in proceeding with an in absentia hearing on that date, as the Order to Show Cause had not been properly served on the respondent.
The regulation at 8 C.F.R. § 242.1(c) (1990) provides:
Service of the order to show cause may be accomplished either by personal service or by routine service; however, when routine service is used and the respondent does not appear for hearing or acknowledge in writing that he has received the order to show cause, it shall be reserved by personal service.
As noted above, the October 15, 1987, Order to Show Cause was sent to the respondent by regular mail. Although 8 C.F.R. § 242.1(c) (1990) makes a distinction between "personal" and "routine" service, it does not provide any definition of those terms. To whatever extent they would be applicable to the manner in which an Order to Show Cause may be served, the Rules of Procedure for Immigration Judge Proceedings do not provide any definition or otherwise shed any light as to how "routine service" is to be distinguished from "personal service." See 8 C.F.R. §§ 3.12-3.38 (1990). The procedural rules regarding service of documents in proceedings before immigration judges, set forth at 8 C.F.R. §§ 3.13 and 3.30 (1990), do define the term "service" but do not differentiate between "routine service" and "personal service."
The terms "routine service" and "personal service" are defined in detail by the regulations at 8 C.F.R. § 103.5a(a) (1990). However, this regulation only applies by its own language to the "authorized means of service by the Service on parties and on attorneys and other interested persons of notices, decisions, and other papers ......
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